Public procurement delays: The constitutional imbroglio

AFRA RAYMOND

“The Truth eats Lies”: Marlon James, Black Leopard, Red Wolf

WE MUST interrogate this judicial intervention against the Public Procurement and Disposal of Public Property Act (PPDPPA) carefully to understand its perils.

Here are the three “red flags”:

• Baseless criticisms of this important law, with no supporting citations or research – Every erroneous point was rebutted by the Office of Procurement Regulation, with proper citations.

• Pending law – All disguised as a discussion on “pending” law, which this is not.

• By invitation of the AG – Our AG invited our judiciary to comment on implementing a law approved by Parliament, then paused the implementation process to consider that 29-page submission.

The three, taken together, taste terrible!

Judiciary: Behind closed doors

The judiciary’s astonishing press release of October 5 objects to the use of the Freedom of Information Act (FoIA) to examine its exchanges with the AG:

“The judiciary is of the view that correspondence between the Chief Justice and the Attorney General should not be the subject of an FOI request under the act. There should be a system where certain things are classified and may be declassified after a period of time.

“The judiciary wishes to make it clear that it is not averse to sharing its comments on this issue publicly but not under the ambit of an FOI request. Allowing such an FOI request is a dangerous precedent that the judiciary believes should not be set...”

The judiciary says this correspondence ought to be exempted from the FoIA, although the applicable list of public authorities includes “...a ministry or a department or division of a ministry...” Those provisions include documents in the records of public authorities, regardless of authorship.

Apart from that perturbing view, look at the final part of that citation, also being advanced as a judiciary position: “...Allowing such an FOI request is a dangerous precedent that the judiciary believes should not be set...”

Need for oversight

On October 18, I applied to the High Court under the FoIA to get copies of the AG’s April 12 letter and the judiciary’s May 25 letter of response. That was an application for a judicial review of the ministry’s refusal to disclose those documents; the first stage of those is to seek the leave of the court to proceed with the lawsuit. The leave stage is a preliminary filter which allows the court the discretion to exclude frivolous or weak lawsuits.

On November 1, the High Court granted ex-parte leave, signifying its view that my proposed claim has an arguable ground for judicial review which has a realistic prospect of success.

It is impossible to reconcile that press release with the ex-parte grant of leave in my case, so I am really wondering if certain elements of the judiciary are not off on a frolic of their own, so to speak.

Consider the sidebar, which summarises the judiciary’s concerns on the PPDPPA and then consider the 2007 ruling by then Justice Judith Jones in HCA 1735 of 2005 which exempted judicial officers from the oversight of the Integrity Commission.

Our judiciary seems hostile to both the applicability of the FoIA to its correspondence with the AG and to the implementation of the PPDPPA.

When one includes the 2007 Integrity Commission exclusion, that is an unacceptable degree of exceptionalism, of the kind which arouses serious concerns in political comparisons of nation-states which lead the world in calling for a just international order while holding themselves outside any independent monitoring.

The judiciary is the important limb of our state which is mandated to superintend our adherence to our Constitution and our other laws. Yet that body would seem to hold contrary views about its own standing within our nation’s integrity framework.

I would campaign for any constitution review to reinstate and fortify provisions for judicial oversight by both the Integrity Commission and the Office of Procurement Regulation.

The independence of the judiciary is an indispensable element of a progressive society, but we also have to ensure that there is independent oversight to maintain proper checks and balances.

The lack of judicial oversight is unacceptable in our increasingly corrupt society, especially when one considers reports of prosecutions for judicial corruption in other jurisdictions. Who is to guard the guards?

Judiciary knows what it’s doing

I wholly reject the notion that the judiciary truly misunderstands the PPDPPA. For that to be true, one would have to ignore the fact that ten learned judges nominated by the CJ delivered day-long training sessions to the OPR in the course of developing proper regulations in July and August 2020. In addition to the participation of our own judiciary, there were also training sessions with judges of the CCJ in May 2021.

Finally, one would have to accept that this troubling consensus emerged from a consultative process. I find that literally unbelievable.

We are witness to an intentional attempt in the highest offices in our republic to pappyshow the public on this important issue.

In closing, it would be an avoidable and epic tragedy if the Office of Procurement Regulation were to end up as an ineffective arm of our country’s integrity framework, just like the Integrity Commission and the Auditor General.

That is the danger we must resist.

A quick guide to the judiciary’s concerns over the PPDPPA.

CONCERN –– REBUTTAL

Pending law: This phrase is used to explain these comments, but this is not a “pending” law by any stretch of the imagination, having been passed by Parliament.

Disrupting existing arrangements: The fact that this law will “disrupt existing arrangements” (my phrase) is being invoked as a warning – which is ironic, since that is exactly what we intended in writing this law. We got into this series of crises via the “existing arrangements,” so those must now be disrupted.

Sharp increase in litigation: This supposed flood of litigation was invoked to warn against this law, which is simply an untenable notion, given the streamlined challenge proceedings and the 2016 insertion of a Procurement Review Board to add another stage at which claims can be resolved without involving the courts.

Separation-of-powers issues: Yes, there are separation-of-powers issues at work here, ironically enough, but those have been debated and passed by our Parliament with the required majority.

One size fits all: This invites us to believe everything – from the purchase of a dustbin to the construction of an overpass – is subject to the same process.
That is simply untrue, as a range of appropriate processes are in place for differing kinds of procurements.

Afra Raymond is a chartered surveyor, managing director of Raymond & Pierre Ltd and a past president of the Joint Consultative Council for the Construction Industry (JCC)